V I R G I N I A:

SPECIAL EDUCATION DUE PROCESS HEARING

MICHAEL “GLENN” WHITE, et. al. Plaintiffs,

v.

VIRGINIA DEPARTMENT OF EDUCATION

and

VIRGINIA BOARD OF EDUCATION,Defendants.

PLAINTIFF’S MEMORANDUM

IN

RESPONSE TO

DEFENDANT’S ANTICIPATED MOTION TO DISMISS

On December 18, 1999 the Plaintiffs requested a special education due process hearing against the defendants. The defendants have refused to implement the decision of the state level review officer in violation of law.

On January 17, 2000, an evidentiary hearing is scheduled. The final decision is due by February 3, 2000.

The defendant, through counsel, has advised that the Commonwealth will move to dismiss the hearing arguing that:

  • the Hearing Officer does not have jurisdiction over the State Board of Education and the State Department of Education, (hereinafter SEA); and that
  • the SEA should not have to fund Glenn’s educational placement at The New Community School arguing that it is not his current educational placement.

The Code of Federal Regulations mandates that “If the decision of a hearing officer in a due process hearing conducted by the SEA or a State review official in an administrative appeal agrees with the child’s parents that a change of placement is appropriate, that placement must be treated as an agreement between the State or local agency and the parents for purposes of paragraph (a) of this section.” 34 C.F.R. § 300.514(c)

The Virginia Department of Education does not agree.

FACTS

The facts are fairly simple and, except for paragraphs 17 through 20, should not be subject to dispute.

1.On May 30, 1997, Steve and Jan White requested a special education due process hearing against Henrico County Public Schools on behalf of their son, Michael “Glenn” White. They were seeking reimbursement for their son’s education at The New Community School. Their request stated:

Glenn is a twelve year old boy who has been enrolled in the Sixth Grade at The New Community School during this past academic year. Before entering The New Community School, Glenn attended Henrico County Public Schools for six years, from Kindergarten through Fifth Grade.

Glenn was identified very early as a youngster who had significant speech language problems. As you know, speech-language problems signal that the child is at risk for learning disabilities. As Glenn continued in school, it was clear that he was far below the average youngster in the acquisition of reading and writing skills. Glenn began receiving special education services in 1991, when he was in First Grade.

In March, 1994, Glenn was retested. Despite the fact that he was receiving special education in his areas of deficit, he had regressed significantly in areas where we have reported scores . . .

Between 1991 and 1994, in the areas of Reading and Written Language, Glenn’s scores declined steadily. For example his Letter Word Identification Score dropped from the 13th to the 5th percentile (SS = 76). Yet, Glenn also scored at the 99th+ percentile level in Social Studies (SS = 139) and at the 98th percentile level in Broad Mathematics (SS = 131), and Mathematics Reasoning (SS = 132). In these areas, he functioned at the “very superior” level. Thus, by 1994, Glenn’s scores ranged from the “very superior” or “superior” levels in Math, Science and Social Studies to “low” or “low average” in Reading and Written Language.

By Spring, 1996, when Glenn finishing Fifth Grade, his parents were alarmed at his inability to read, write or spell. They observed that their son’s reading and writing skills were “non existent.” These parents based their analysis on facts like Glenn could not read simple traffic signs -- like “No Left Turn,” or “Stop”.

The last IEP developed for Glenn by Henrico County Public Schools included three annual goals: to “improve overall Reading skills,” “improve overall Written Language skills,” and “to improve overall work habits.” Glenn’s progress toward these goals would be evaluated by “daily work,” “quizzes,” and “teacher observation.” This IEP did not include any means to objectively measure Glenn’s progress or lack of progress. Next to the Short Term Objectives, statements like the following were written: “improvement noted,” “big improvement noted” “really trying” “doing great,” or “doing better.”

. . .

In the Spring of 1996, Glenn was tested at The New Community School. This objective testing showed that his reading and spelling skills had fallen even lower, to the 1st percentile level. His reading comprehension and phonetic analysis were at the 4th percentile level. On other tests, his spelling and sight reading skills were measured at the 2nd percentile level. Unfortunately for Glenn, this testing showed that his parents’ dismal assessment of his reading and language skills was accurate. He was not “making progress.” After five years of special education, Glenn could not read or write.

. . .

In Dictation, he was functioning at the 2.0 grade level (SS = 62). In Broad Reading he was at the 2.7 grade level (SS = 70). In Broad Written Language, he was functioning at the 2.3 grade level (SS = 61). At this time, Glenn had attended Henrico Public Schools for six years and received special education for five years. During these years, he had not acquired even the most rudimentary skills in reading, spelling or written language. Glenn’s failure to acquire these basic skills was not due to any lack of ability.

A special education hearing officer found that many of the factual allegations were correct, but failed to award tuition reimbursement to the Whites. The case was appealed to a state level Review Officer.

2.On July 10, 1998 state level Review Officer Frazier found that:

The child herein, Michael Glenn White, was born April 20, 1985 and is presently a young man of the age of thirteen years who has been receiving Special Education for the past six years (kindergarten through the Fifth Grade). He is not retarded. He has an average IQ and his reasoning skills are significantly above average. Glenn, as he is known, also has dyslexia. (Page 4)

. . .

The facts here are and were not in dispute, that Michael Glenn White has been receiving Special Education from the Henrico County Public Schools for the first through the fifth grades. Notwithstanding that his education through the fifth grade had been and was then governed by an (IEP) calling for Glenn to receive individualized intense remediation to teach him basic reading skills, he was, without the consent of his parents or any modification of his IEP, unilaterally withdrawn by the principal of his fifth grade school, from his prescribed educational program and placed, without any re-evaluation or revision of the then current IEP, into less intensive, full sized, regular education classes in a so called “Collaborative” program in which a special education teacher merely collaborated with his regular education classroom teacher.

. . .

It is notable, that the results of this change in placement were described by direct testimony of Glenn’s former teacher, Mrs. Batalio in her testimony before the Hearing Officer, apparently without impacting his decision. “I increased Glenn’s time because I knew that Glenn needed a little extra before he was ready to go to middle school, and I wanted to make sure be got that,” and in response to the question “Why . . .” she added “Because he was not reading (emphasis added) and not making the progress with the amount of time on his two-hour IEP, and I felt that if gave him that extra time and worked with him and went that extra mile for him that he would be able to learn more and make more progress prior to getting to the end of the year in June and then starting into middle school for the next year (Transcript of the Due Process Hearing before the Hearing Officer below, at page 236). . . Clearly the unilateral program change by the principal without resort to the IEP or the IEP committee, and clearly without the parents consent constituted a major change of placement and in an inappropriate manner and more than just a technical violation of the IEP, and was in clear violation of IDEA.

The Due Process Hearing Officer clearly evinced an awareness that Henrico County Public Schools had failed in its IDEA requirement to provide Michael Glenn White with a Free Appropriate Public Education and recognized that notwithstanding the credibility of the Henrico County Public Schools’ witnesses, the Henrico County Public Schools had failed to provide Michael Glenn White with a Free Appropriate Public Education. This became more evident with the June 1996 IEP and was significantly compounded by the principal’s unilateral change of Michael Glenn White’s placement by her unilateral action in removing him from a Resource setting and into a Collaborative setting. . . (Review Officer Decision, page 5-7)

. . .

In his conclusion, the State Level Review Officer reported that:

The Henrico County Public Schools has failed to provide for a Free Appropriate Public Education of Michael Glenn White for the school year 1996-1997. The education offered for Michael Glenn White for 1996-1997 was inappropriate. The IEP for Michael Glenn White for the 1996-1997 school year was invalid and did not provide for a free appropriate public education. The IEP for Michael Glenn White for the 1997-1998 school year was invalid and did not provide for a free appropriate public education. Therefore, Michael Glenn White is entitled to reimbursement for tuition and costs attendant to his enrollment at New Community School for the year 1996-97 as a result of the inappropriateness of the education by Henrico County Public Schools that year and for the year l997-98 and in the future for the invalidity of the 1997-98 IEP and the failure of the Henrico County Public Schools to provide for Free Appropriate Public Education for Michael Glenn White then as well as its inability to do so in the future. (Review Officer Decision, page 10-11)

3.After the Review Officer issued his decision, Henrico appealed to the Circuit Court of Henrico County. Henrico County Public Schools refused to implement the decision of the Review Officer. The Virginia Department of Education was made aware that the School Board was refusing to implement the decision of the Review Officer and yet took no action against the County.

4.On May 25, 1999, Mr. and Mrs. White wrote to the Virginia Board of Education and the Virginia Department of Education, and advised that:

We are now very concerned and financially burdened because Henrico County appealed the decision of the State Level Review Officer, less than one week before Glenn started the 1998-99 school year. This meant that we again had to pay tuition and additional attorney fees . . . We make an average income and find that we are unable to continue to pay these expenses . . .

We have been so financially burdened that we have even sold the piano that my great-grandmother and great-grandfather gave me when I was eight. We are in such financial trouble now that we are worried we will never get financially sound again. Our mortgage payments are behind, we cannot make our payments to our attorney or the hospitals and this will affect our credit rating for years if not forever. We feel the legal system has failed us and Glenn. We were entitled to reimbursement and thought that we would get some relief last summer when the State Level Review Officer made his decision. It has now been nine months and Henrico County has done nothing but appeal the decision. They have not paid what they were ordered to pay. We do not have any resources left and are not sure how we will make any additional tuition payments. We are unable to pay for the additional attorney fees that result from Henrico County’s noncompliance of the decision and that of the Federal Regulations. In addition we are at risk of losing our home if we do not get some immediate relief.

5.Approximately two and a half months later, on August 9, 1999, the Virginia Department of Education ordered Henrico County to “Submit payment to the private placement in accordance with the review officer’s decision, thereby providing for Michael’s (Glenn’s) tuition during the pendency of the appeal in accordance with the requirements of the newly enacted legislation of June 4, 1997, and its implementing regulations of May 11, 1999” and to provide documentation “which verifies payment in accordance with the reviewing officer’s order.”

6.The Order from the SEA included the following:

A summary of our office’s analysis of the issues concludes that:

  1. That the stay-put provision outlined in Section 1415(j) of the IDEA Amendment of 1997 and 34 C.F.R. § 300.514 applies in this case.
  1. That the stay put provision requires Michael to remain in his current placement pending the appeal by HCPSA.
  1. That Michael’s current placement is The New Community School.
  1. That HCPS is responsible for maintaining Michael’s placement at The New Community School.
  1. That HCPS is responsible for Michael’s tuition during the pendency of their appeal which shall include reimbursement for the 1998-1999 school year.

7.Previously, when local school districts appealed decisions of state level Review Officers, the Virginia Department of Education refused to require school districts to comply with the Orders of their Review Officers.

8.The SEA’s August 9, 1999 letter reflected a change from past practices and policy.

9.Henrico County refused to obey the Order and continued to file letters and objections. On November 15, 1999, the SEA re-asserted their position as stated in their August 9, 1999 letter.

10.In early December, Superintendent Paul Stapleton resigned “effective immediately.” Dr. Jo Lynne DeMary, a former Henrico County school administrator, was appointed Acting Superintendent of the Virginia Department of Education.

11.On December 2, 1999, the Virginia Department of Education reversed their position, saying that the “Department of Education will defer to the decision of the Court.” The Department offered no explanation for this sudden reversal.

12.The plaintiff White contacted the Virginia Department of Education and asked why the Department abandoned their position. She did not receive any explanation for the Department’s sudden reversal.

13.The Individuals with Disabilities Education Act requires that the Virginia Department of Education provide written notice whenever such agency “refuses to initiate or change; the identification, evaluation, or educational placement of the child, in accordance with subsection (c) or the provision of a free appropriate public education to the child. The content of such notice shall include an explanation of why the agency proposes or refuses to take the action; other options that were considered, and the reasons why those options were rejected. 20 U.S.C. § 1415(b)(3) and § 1415(c) The Department has failed to comply.

14.The SEA failed to comply with 20 U.S.C. § 1415(j) and 34 C.F.R. § 300.514.

15.Glenn’s “current educational placement” is The New Community School.

16.The Virginia Board and Department of Education is ultimately responsible for implementing the state Review Officer’s Order.

17.The plaintiff’s are entitled to reimbursement for Glenn’s tuition in the approximate amount of $55,000.00, and interest on the award from the date of the Review Officer’s decision.

18.The parents have sustained additional damages occasioned by the Virginia Department of Education’s failure to enforce the Order of the Review Officer since July, 1998.

19.The refusal to enforce an Order of a state level Review Officer constitutes a deliberate and reckless disregard for the rights of the plaintiffs, justifying an award of punitive damages against the Virginia Department and Board of Education and specific individuals.

20.The plaintiffs are entitled to an award of attorney’s fees.

LAW

Individuals with Disabilities Education Act

The State can be Sued

The Individuals with Disabilities Education Act states that “The procedures required by this section (Procedural Safeguards) shall include an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child. 20 U.S.C. § 1415(b)(6)

A parent can initiate a due process hearing in respect to any matter relating to the provisions of FAPE. A state is not “immune under the eleventh amendment to the Constitution of the United States from suit in Federal Court for a violation of this Act.” 20 U.S.C. § 1403(a)

However, “before the filing of a civil action under such laws seeking relief that is also available under this part, the procedures under subsections (f) and (g) shall be exhausted to the same extent as would be required had the action been brought under this part.” 20 U.S.C. § 1415(l) (Rule of Construction) (Section 1415 (f) and (g) relate to the special education due process and review hearings.)